Bush adviser says waterboarding 'is legal,' won't say if it's used
David Edwards and Nick Juliano
Published: Wednesday October 31, 2007

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Bush adviser defends AG nominee's stance on interrogation tactic

Despite Attorney General nominee Michael Mukasey's apparent inability to give a firm yes-or-no answer on the legality of subjecting detainees to simulated drowning, a prominent White House aide insisted the program is "legal," although the government won't say whether it uses the technique.

White House counselor Ed Gillespie said it was unfair for critics to expect Mukasey to give a forthright opinion on a classified program on which he has not been fully briefed.

Democrats and some Republicans in the Senate have expressed new reservations about Mukasey's bid to become the top US law enforcement officer after he gave what some saw as overly parsed answers to the Senate Judiciary Committee when its members have asked if he believes waterboarding constitutes torture.

CNN host John King asked Gillespie directly, "Is waterboarding legal?"

"The fact is that those who have been briefed on the program in the US Senate, those on the Intelligence Committee, and others who are familiar with the program have said that it is legal," Gillespie said. "And those are the ones who have a basis to know. But the fact is the government doesn't confirm techniques regardless of whether they're used or not used."

Gillespie's assertion is undercut by the chairman of the Intelligence Committee, who complained earlier this month about the administration's ongoing refusal to turn over all of its documents on the CIA's interrogation methods to congressional overseers.

“The reality is, the Administration refused to disclose the program to the full Committee for five years, and they have refused to turn over key legal documents since day one," Sen. John D. Rockefeller said after new revelations earlier this month revealed the Justice Department had secretly authorized an array of controversial techniques. “As I have said from the beginning, Congress has a constitutional responsibility to determine whether the program is the best means for obtaining reliable information, whether it is fully supported by the law, and whether it is in the best interest of the United States.”

An Intelligence committee spokesperson did not immediately return a call seeking comment.

In a four-page letter sent to Judiciary Committee Chairman Patrick Leahy Tuesday, Mukasey said he found the process described as waterboarding "over the line" and "repugnant," but he refused to issue a legal opinion based on "hypotheticals." Waterboarding involves tying down a detainee, covering his face with a cloth and pouring water over his mouth and nose to simulate drowning.

Leahy was dissatisfied with Mukasey's response, but he has scheduled a committee vote on Mukasey's nomination for next week. By that time he hopes committee members have "an opportunity to consider the recently received written responses from the nominee," the Vermont Democrat said in a statement Wednesday.

All four Democratic presidential candidates in the Senate have said they would vote against Mukasey, and the ranking Republican on Judiciary, Sen. Arlen Specter, also has voiced concerns about the nomination.

Mukasey was expected to be confirmed easily when his nomination was announced, but his parsing on the definition of torture has thrown some roadblocks in his path, the Washington Post reported, and some activists are wary about his honesty.

Caroline Fredrickson, Washington legislative director for the American Civil Liberties Union, told the paper that Mukasey does not need a classified briefing to answer the question on waterboarding as he has claimed.

"He seems like he's just an artful hairsplitter," Fredrickson declared.

The following video is from CNN's American Morning, broadcast on October 31, 2007.


ROBERTS: The question today: Are you going to lose this nomination?

GILLESPIE: No. Judge Mukasey is well respected and well regarded across the aisle. In consultations with Senators before coming forward, Judge Mukasey's name was raised by Democrat and Republican alike, and he has been known for his independent nature, for his thorough and careful review of the law, and we see that in the letter he sent to the Judiciary Committee in response to their question about waterboarding yesterday.

ROBERTS: I guess what you see depends on your perspective because yesterday the Democrats saw what they thought was evasion. It's on this critical issue of waterboarding. Mukasey said he thought it was 'over the line' and 'repugnant' but got a little gray on the legal aspects. ... The democrats were looking for a clear disavowal here. Why couldn't he be absolutely clear on this issue?

GILLESPIE: Let's understand this technique. We don't know that it's been used by the government or ... confirmed by the US government. The program that it involves is a classified program. Now, members of the United States senate have been briefed on the program and they have said that it is -- it complies with all laws but Judge Mukasey has not. As a nominee he does not have the ability to be briefed on a classified program as members of the Senate do. His point was, 'If confirmed I will review this program and review the underpinnings in terms of the legality of it and come back to you with a judgment. Here is how I would look at it.' And it's unfair to ask him to render a legal opinion on something. He offered his personal opinion but he can't render a legal opinion on something he has not been briefed on. By the way, the members of the Senate asking the judge to do something in this nomination process which the Senate hasn't done. Less than a year ago there was a vote on the floor of the Senate as to whether or not to apply the Army field manual regulations that applied to the Department of Defense and military detainees across the government. And it was rejected by the Senate 53-46. Now they're asking him to make a determination that the Senate itself didn't make less than a year. It's not really fair to ask him to render a legal opinion without sufficient information.

ROBERTS: Ed, you said a second ago that you can't confirm or deny whether waterboarding has been used. It's widely held waterboarding is what broke Khalid Sheikh Muhammad to get him to divulge all of the information he had. What is your sense? is waterboarding legal?

GILLESPIE: The fact is that those who have been briefed on the program in the United States Senate, members of the Intelligence Committee, and others who are familiar with the program have said that it is legal. And those are the ones who have a basis to know. The fact is the government doesn't confirm techniques regardless of whether they're used or not used. No rule in or out because the idea is not to help terrorists who mean to do us harm.